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R v Mohammed

[2018] QCA 289

COURT OF APPEAL

GOTTERSON JA

McMURDO JA

DOUGLAS J

CA No 105 of 2018

DC No 2572 of 2017

THE QUEEN

v

MOHAMMED, MujahidApplicant

BRISBANE

WEDNESDAY, 24 OCTOBER 2018

JUDGMENT

McMURDO JA: The applicant pleaded guilty to three offences of rape and one of stealing committed against the same complainant, a 15 year old girl, on 7 December 2016. He was sentenced to concurrent terms of five years, six and a half years and seven years for the rape offences, and one of three months for the stealing offence. A parole eligibility date was set at 5April 2020, which was two years from the date of the sentence. A total of 79 days was declared as pre-sentence custody.

He applies for leave to appeal against the sentences for the rape offences upon the ground that the sentencing judge erred in his consideration of the principle of totality, because no allowance was made for a consequence of the commission of these offences being that the applicant had to serve another 10 months and eight days as the balance of previous sentences.

The applicant was born on 1 January 1995, so that he was aged 21 at the time of these offences and 23 at the time of the sentence. He had a criminal history, which the judge described as somewhat complicated but which is helpfully summarised in the submissions for the respondent, from which I now quote:

“He was sentenced to partially suspended sentences of 18 months and 9months imprisonment in Brisbane District Court in December of 2013 and placed on probation for a period of 3 years. He had served 237days in pre-sentence custody [at that point].

[He] received a wholly suspended sentence of 6 weeks in November 2014 before being required to serve two months of an effective 8 ½ month sentence imposed in June 2016 after which he was released on parole.

That was comprised of a 6 month sentence, a 1 month sentence and the activated 6 week suspended sentence. The last two were required to be served cumulatively as they related to breaches of bail. As a result of those convictions the sentences imposed in December of 2013 were the subject of breach proceedings in August of 2016. The suspended sentences were activated in full, and the applicant was resentenced on the matters for which he had been placed on probation.

[He] was required to serve 310 days and 33 days respectively which remained on the activated suspended sentences and 12 months and 6months respectively on the matters for which he was resentenced. All of those sentences were to be served concurrently, and he was given immediate parole. They were running concurrently with the sentences imposed in June 2016, for which he had been released upon parole 4weeks earlier.

The offences for which the applicant was before the Court occurred approximately 3 ½ months later [that is, the offences the subject of this application]. He was arrested on 24 December 2016 and held on remand until 28 December 2016 when his various parole orders were cancelled. He was required to serve 312 days or 10 months and 8 days that remained on the sentences at that time.”

He commenced to serve that period, which he completed on 6 November 2017. He was then a short time on remand for the subject offences before, on 29 November 2017, he was sentenced for assaulting a corrections officer to a term of two months and 14 days, which he then served until 11 February 2018. There followed a further period in which he was on remand for the subject offences before he was sentenced for them on 5 April 2018.

As the sentencing judge summarised the position, he had been in custody for about 15 months, of which one component was that period of about 10 months, another was the period of about two and a half months for the assault of the corrections officer, and the third component was the period of 79 days which was for pre-sentence custody which could be declared as time served for the subject offences.

The applicant has conceded that the terms imposed in this case would not have been excessive but for the time which the applicant had had to spend in custody but which could not be declared. That concession is rightly made, having regard to the facts and circumstances of the subject offences, which are as follows.

The complainant was a 15 year old girl who met the applicant and another man at a shopping centre. Before long, the complainant had left the shopping centre with the two men, apparently in search of drugs. Later, towards midnight, the complainant, the applicant and the other man went to that man’s residence. They started to watch television before the applicant and the other man sought to have sex with her, which she resisted unsuccessfully.

First, the other man raped her before the applicant did so, and each of them had intercourse with her several times before the applicant anally penetrated her with his penis. All the time, the girl was resisting, and the whole event lasted about an hour and a half. Three or four times, the complainant tried to leave the unit, but the men prevented her from doing so. Eventually, she fell asleep. She woke up some hours later and went to a nearby shop, where she called her parents. Later that day, she reported the offences to police. That evening, she attended hospital, and samples were taken for DNA analysis. Subsequent analysis found the applicant’s sperm in the complainant’s vagina and rectum, and the other man’s sperm was also found in her vagina.

The next day, police executed a search warrant at the unit where this had taken place, and the other man was arrested. On 24 December, the applicant was arrested and was found to be in possession of the complainant’s mobile phone. He told police that the other man had given it to him. He was interviewed by police and admitted that he and the other man had met the girl and gone with her to the unit, but the applicant then denied having sex with her. He was then charged and remanded in custody.

The sentencing judge rightly described this as appalling conduct which was all the worse for the facts that, as the applicant knew the complainant was only 15 years old, his offending had continued over an extended period and it was committed in the company of the other man. The sentencing judge referred to the applicant’s criminal history, and, as I have said, he summarised the respective periods of custody, only one of which could be declared. Relevantly to the ground of appeal, the judge said this:

“While I may take into account the non-declarable time, that is, the time served on the activated suspended sentence and the assault charges, in exercising my discretion in sentencing, I am not compelled to allow the whole period as if it was time served. I should make clear that I do not put much weight on the serving of the 10 months imposed on activation of the suspended sentence in sentencing in this matter. It seems to me that the circumstances of repeated offending, despite the opportunities given by the courts, amply justify that time not being taken into account in respect of sentencing for this offence in any material way. Also bearing in mind that you were actually on parole for that offence when this offence was committed – for that sentence when this offence was committed, Iwill give some weight to the other period of 2.5 months, and, of course, the 79 days will be declared.”

His Honour said that there was no evidence of remorse and no evidence of insight save for the “bare plea of guilty”. After referring to a number of comparable sentences and again, describing the serious facts and circumstances of these offences, the judge said:

“Balancing those factors are your plea of guilty, your time already in custody and your youth”

and he then imposed the sentences.

During the submissions, the judge had made some comments on the relevance of the period of 10 months or so in custody which could not be declared. At one point, there was this exchange with the prosecutor. The prosecutor said:

“Even though only the 79 days is strictly declarable, your Honour can take into account the entire period he has been held in custody.”

His Honour said:

“Yes. Well, I don’t know if I’m going to be confronted with a crushing argument, but that kind of thing is a function of the offences that you committed.”

At another point, during a submission by the applicant’s counsel that it would be appropriate to take into account the whole of the time which he had spent in custody prior to the sentence, the judge said that it was “difficult to put too much weight” on the period of custody which could not be declared because, in effect, that was simply the consequence of the applicant’s committing further offences after his initial sentences.

For the applicant, it is argued that the judge failed to give proper consideration to the principle of totality, as was discussed by this Court in a case of this kind in R v Macklin [2016] QCA244. In that case, the appellant had been sentenced to seven years imprisonment for burglary and armed robbery offences. A parole eligibility date was set at effectively the halfway mark. An allowance was made for so much of the pre-sentence custody as was able to be declared. Before he was on remand for those offences, Macklin had been returned to custody 11 months earlier because he had committed the subject offences whilst on parole. President McMurdo, with whom Justices Gotterson and Morrison agreed, said that the application of the totality principle required the sentencing judge in that case to take into account that period of 11months and that the judge had ultimately imposed a sentence which was manifestly excessive. The sentences were varied by substituting six years for seven years imprisonment.

For the respondent in the present case, it is acknowledged that it was open to the judge to reduce the sentence because of this period of 10 months which could not be declared, but it is submitted that the judge was not obliged to do so. It is correctly submitted that this Court’s judgment in Macklin was a decision on the facts and circumstances of that case and that the case is not authority for a proposition that, in cases such as these, the non-declarable period must always be brought into account. In Postiglione v The Queen (1997) 189 CLR 295, Justice McHugh observed that:

“In order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.”

Justice McHugh there approved a statement by Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 at 466 as follows:

“When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the total of criminality involved in all of the offences to which that total period is attributable.”

The relevant reasoning of the judge in the present case appears in the passage which I have quoted. His Honour considered that the circumstances of the applicant’s repeated offending, despite the opportunities which had been given by Courts, “amply justified” this period not being taken into account. In my respectful view, the judge did not seem to consider whether, when assessing the totality of the criminality involved in all of the offences, that is, the subject offences and the earlier offences, the total period of imprisonment attributable to those offences was appropriate.

A consequence of the commission of the subject offences was that the applicant had to spend not only time in custody under the subject sentences but also another 10 months and eight days, having breached his parole orders. That meant that, as a consequence of these offences, he had to spend more than three years in prison before being eligible for parole and, if not paroled, about eight years in prison. These were very serious offences, but proper allowance had to be made for the applicant’s plea of guilty and his youth. I am persuaded that the judge’s error led to a sentence which was excessive.

An error has been demonstrated and this Court should resentence the applicant. I would order as follows: grant leave to appeal, allow the appeal, vary the sentence on count 3 by substituting a term of five and a-half years imprisonment for the term of six and a-half years which was imposed, and vary the sentence on count 4 by substituting a term of six years and two months imprisonment for the term of seven years which was imposed.

GOTTERSON JA: I agree.

DOUGLAS J: I agree.

GOTTERSON JA: The orders of the Court are the four orders proposed by Justice McMurdo.

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Editorial Notes

Published Case Name:

R v Mohammed

Shortened Case Name:

R v Mohammed

MNC:

[2018] QCA 289

Court:

QCA

Judge(s):

Gotterson JA, McMurdo JA, Douglas J

Date:

24 Oct 2018

Litigation History

Event

Citation or File

Date

Notes

Primary Judgment

DC2572/17 (No Citation)

07 Dec 2016

Date of Sentence.

Appeal Determined (QCA)

[2018] QCA 289

24 Oct 2018

Application for leave to appeal against sentence granted; appeal against sentence allowed; sentence on count 3 varied by substituting five and a-half years imprisonment for the term of six and a-half years; and on count 4 by substituting six years and two months imprisonment for the term of seven years: Gotterson JA, McMurdo JA and Douglas J.

Appeal Status

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